Tate v. State, No. 2003-KA-02504-SCT.

• Decision Date: 24 March 2005
• Docket Number: No. 2003-KA-02504-SCT.
• Parties: Kirby TATE a/k/a Kirby Glenn Tate v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 919

912 So.2d 919

Kirby TATE a/k/a Kirby Glenn Tate v. STATE of Mississippi.

No. 2003-KA-02504-SCT.

Supreme Court of Mississippi.

March 24, 2005.

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J. Niles McNeel, Louisville, Percy Stanfield, Jackson, Glen W. Hall, attorneys for appellant.

Office of the Attorney General, by W. Daniel Hinchcliff, attorney for appellee.

Before COBB, P.J., DICKINSON and RANDOLPH, JJ.

DICKINSON, Justice, for the Court.

¶ 1. Kirby Tate was convicted in the Circuit Court of Lauderdale County of possession and delivery of marijuana. He appeals his conviction to this Court, and we affirm.

¶ 2. Mississippi Drug Task Force agents arranged with confidential informant Gerald Warren to make a purchase of illegal drugs, or a "bust buy," from Kirby Tate. On March 10, 2003, Tate met Warren in the parking lot of El Cheapo's Tobacco Store on Highway 19 South in Lauderdale County, where he gave a quantity of marijuana to Warren. Warren gave a code word to narcotics agents over a hidden wire, and numerous drug task force agents swarmed the scene, seized the marijuana delivered to Warren, and discovered three more packages of marijuana in Tate's possession: one on his person, one on the front seat of his vehicle, and one hidden in a secret compartment in his vehicle. The agents arrested Tate on charges of possession with intent to deliver and delivery of more than an ounce but less than a kilogram of marijuana.

¶ 3. Tate was convicted by a jury in the Circuit Court of Lauderdale County of one count of delivery of more than an ounce but less than a kilogram (435.3 grams) of marijuana and of one count of possession of more than an ounce but less than a kilogram (531.0 grams) of marijuana with intent to distribute. Because Tate had two prior felony convictions,¹ the trial court sentenced Tate, as a habitual and enhanced offender under Miss.Code Ann. §§ 99-19-81 and 41-29-147,² to serve sixty (60) years in the custody of the Mississippi Department of Corrections for each of the two counts, without the possibility of such sentence being reduced or suspended. The two sentences are to run concurrently, but Tate will not be eligible for early release. Thus, given his age at the time of sentencing, Tate will not be released from prison until he is ninety-nine years old.

ANALYSIS

I. Tate's prior convictions.

¶ 4. Prior to trial, the State filed a Notice of Intent to Use Felony Convictions to Prove Intent under Mississippi Rule of Evidence 404(b).³ Specifically, the State's claimed it intended to admit Tate's two prior convictions of the sale of marijuana, less than an ounce. The trial court stated that it would reserve its ruling on the motion until testimony had been presented concerning the entrapment defense, and the court could determine whether the probative value of the convictions was outweighed by the danger of unfair prejudice.

¶ 5. After Tate's direct examination, the State made a motion for admission of the prior convictions under Rule 404(b). The State claimed that, since Tate claimed he had been entrapped, the prior convictions were offered to show predisposition and intent to commit the crime. Over objection, the trial court granted the motion and allowed the prior convictions to be admitted reasoning that entrapment had been raised as a defense. The court stated for the record:

It is the Court's considered opinion that under the law of the State of Mississippi that once a defendant claims a defense of entrapment that pursuant to Tran versus State⁴ decision and other State Supreme Court decisions, any evidence of predisposition to commit a crime is relevant and admissible. That case says that any evidence of predisposition is always relevant and always admissible. Any prior bad acts relating to the possession or transfer or sale or dispensing of controlled substances, I think, is admissible.

¶ 6. The State then cross-examined Tate about his January 28, 1991, conviction on two counts of the felony offense of the sale of marijuana, less than one ounce.

¶ 7. On appeal, Tate argues that the trial court erred in allowing the State to question him about his prior convictions because these convictions occurred more than ten years prior to the date of the current trial. Tate asserts that before evidence may be admitted under M.R.E. 404(b), the court must conduct the balancing inquiry under M.R.E. 403⁵ to determine whether the evidence is more prejudicial then probative, and that the remoteness of the time of these convictions should have made them inadmissible. Tate also points out that the trial court granted his motion to exclude his prior convictions for purposes of impeachment under M.R.E. 609(b).⁶ The trial court held Tate's prior convictions to be inadmissible for purposes of impeachment because they fell outside the ten-year period. Tate argues that the trial court should have used the same reason to exclude the conviction for purposes of Rule 404(b) when conducting a Rule 403 balancing inquiry. Tate argues that the State should not have been allowed to "come in the back door" and present the convictions as evidence of intent under M.R.E. 404(b) while they were inadmissible for purposes of M.R.E. 609.

¶ 8. The State argues that Tate's prior convictions were admissible because Tate put forth an entrapment defense that put his intent or predisposition to commit a crime at issue, and M.R.E. 404(b) allows prior convictions to be admitted in such a case. The State points to the trial court's reasoning as stated on the record in the trial transcript, quoted above. The State also cites Robert v. State, 756 So.2d 806, 808 (Miss.Ct.App.1999), and Tran v. State, 785 So.2d at 1119-1120, for the proposition that when entrapment is pled as a defense, any evidence of predisposition is always relevant and therefore always admissible. While this proposition may have been the premise adopted by the trial court, this is not a complete statement of the law.

¶ 9. The standard of review this Court uses regarding admission or exclusion of evidence is the abuse of discretion standard. Herring v. Poirrier, 797 So.2d 797, 804 (Miss.2000). Where such error is found, this Court "will not reverse unless the error adversely affects a substantial right of a party." Ladnier v. State 878 So.2d 926, 933 (Miss.2004) (quoting Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000), citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)).

¶ 10. Tate presented an entrapment defense at trial. Tate claimed that the only marijuana belonging to him was that found on his person and that the other marijuana found in his vehicle did not belong to him. Tate asserted that Warren had planted the other two packages of marijuana at his home without his knowledge on March 9, 2003. Tate further claimed that Warren later called him and told him that he had left marijuana in the shed at Tate's home. Tate's defense at trial was that when he met Warren on March 10, 2003, he was not selling any marijuana but only trying to return it to Warren. A classic case of entrapment is one in which law enforcement is both the supplier and the buyer of the contraband which is the subject of the defendant's arrest. Moore v. State, 534 So.2d 557, 558 (Miss.1988). Tate alleged that the confidential informant, Warren, was both the supplier and the buyer of the marijuana, and so the trial court found that he had presented an entrapment defense.

¶ 11. Entrapment has been defined as "the act of inducing or leading a person to commit a crime not originally contemplated by him, for the purpose of trapping him for the offense." Hopson v. State, 625 So.2d 395, 399 (Miss.1993) (emphasis added) (citing Phillips v. State, 493 So.2d 350, 354 (Miss.1986); McLemore v. State, 241 Miss. 664, 675, 125 So.2d 86, 91 (1960)). The defense of entrapment is affirmative and must be proved by the defendant. If the defendant already possessed the criminal intent, and the request or inducement merely gave the defendant the opportunity to commit what he or she was already predisposed to do, entrapment is not a defense. Id. (citing Bush v. State, 585 So.2d 1262, 1264 (Miss.1991)). Thus, predisposition to commit the crime becomes an issue when a defendant raises an entrapment defense.

¶ 12. This Court has held that a defendant's prior drug activity is admissible to show predisposition. In Hopson, this Court held that an objection to the admission of the defendant's prior drug-related activities was properly overruled, "as these activities showed [his] predisposition to the commit the alleged offense." 625 So.2d at 402.

¶ 13. In light of this Court's opinion in Hopson, Tate's prior convictions were admissible for the purpose of showing Tate's predisposition to selling marijuana. However, all evidence must be filtered through M.R.E. 403, to ensure its probative value outweighs its prejudicial harm. Johnson v. State, 655 So.2d 37, 42 (Miss.1995). Specifically, this Court has held that evidence which is admissible under Rule 404(b) must be tested under Rule 403. Jenkins v. State, 507 So.2d 89, 93 (Miss.1987).

¶ 14. The record in this case does not show that the trial court balanced the evidence of Tate's prior convictions under M.R.E. 403 before allowing it to be admitted.⁷ In fact, the judge never mentioned the word "prejudice," and his comments suggest that the trial court admitted the convictions under an assumption that this evidence was "always admissible," without considering the weight of its prejudicial effect against its probative value. Specifically, the trial court stated: "[Tran v. State] says that any evidence of predisposition is always relevant and always admissible."

¶ 15. Though the trial court correctly quoted Tran, the quoted language does not completely state the law. In Tran, the Court of Appeals did state that "[w]hen a defendant claims entrapment, any evidence of predisposition is always relevant and always admissible." 785 So.2d at...